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IS INTERNATIONAL LAW A PART OF THE LAW OF

ENGLAND?

THE

HE case of West Rand Central Gold Mining Company v. Rex was

a petition of right, seeking the performance by the Crown, as successor to the South African Republic, of an obligation alleged to have rested on that republic for the repayment of the value of gold commandeered by it shortly before the commencement of the lato war : [1905] 2 K. B. 391. The Attorney-General demurred and the demurrer was allowed. Among the points taken for the petitioners by Lord Robert Cecil, K.C., was this : 'Secondly, international law is part of the law of England.' The Court, composed of Lord Alverstone C.J., and Wills and Kennedy JJ., gave to that maxim an adhesion modified as follows: 'Any doctrine so invoked must,' they said, 'be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it;'p. 407. I now propose to examine further the nature and extent of the connexion between international law and the law of England, and, since dolus latet in generalibus, I must do it with what I hope may not prove wearisome detail.

At first sight it might be thought that no such connexion was possible. The law of England, in the sense in which it is contrasted with international law, consists of rules to be applied between the private parties who are suitors in the king's courts, including foreign states when they appear as plaintiffs claiming such rights as a private person might have, or between the king and the private parties who are amenable to his courts. International law consists of rules to be applied between states. How can a rule expressing rights and duties of states inter se be a part of a body of rules expressing rights and duties of private parties, whether inter se or between them and the king? The law of England is the law of the king's courts : a state is not amenable to those courts and is not commonly a suitor in them. If it is a suitor in them it thereby submits to their law, and, since the opposite party is always a private one, how can any rule only existing between states find a place ? Before attempting to bridge the chasm it will be well to clear away some considerations which are alien to the subject.

In the United Kingdom, possibly subject to exceptions which will be noticed in due place, a treaty has no effect on private rights: if the Crown concludes a treaty which is intended to divest or modify private rights, it must obtain an act of parliament to give it that operation. In the United States it is otherwise, for the sixth article of the constitution provides that all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. Hence, when the ninth article of the Jay treaty in 1794 enabled the subjects of either country to hold lands in the other, and to sell and devise them as if they were natives, this stipulation at once took effect in the United States in favour of British subjects, repealing of itself so much either of common or of statute law on the disabilities of aliens as stood in its way, while on our side of the Atlantic an Act of 37 George III had to be and was passed in order to give effect to the stipulation in favour of citizens of the United States. This difference might seem to imply that the rule of international law requiring that treaties shall be observed was incorporated with the law of the United States though not with the law of England. But it is not so. The difference is merely that the executive possesses in the United States a power of making law by treaty not paralleled in England. That the faith of treaties is treated in the same way in the two countries is proved by the fact that as the treaties of the United States repeal their common law and their previous legislative acts, so they are in their turn repealed by subsequent acts of Congress, and the question whether such repeal was contrary to international good faith and law will not be entertained; a position firmly established by the decisions of the Supreme Court on claims to the benefit of customs conventions in spite of acts of Congress fixing duties. See Whitney V. Robertson, 124 U. S. 190, and Scott's Cases on International Law, 422, with the note on p. 426.

Again, in the case of the death caused within three miles of the English coast by the negligent navigation of the German ship Franconia (Reg. v. Keyn, 1876, 2 Ex. D. 63), it was discussed whether the definition by international law of the territorial extent of sovereignty could, of itself, give to the king's courts jurisdiction over the extent so defined ; and there was a difference of opinion on the point. Among the majority, who gave judgment for the defendant, Sir Alexander Cockburn C.J. held that not

only was there no international law awarding sovereignty over the sea within the three-mile limit, but that, even if there had been, jurisdiction would not have been thereby given to the court, but an act of parliament would have been needed for the purpose.. And Lush J. made that hypothetical case the actual one, holding that as between nation and nation the waters in question were British territory, but that for want of an act of parliament the court had no jurisdiction over them. On the other hand, Lord Coleridge C. J. held that the waters were part of the realm by the agreement of civilized nations, and that therefore British law had to be administered for them by some tribunal, which for the reasons he gave could only be the Central Criminal Court. The objection to international law as giving territorial jurisdiction to the king's courts prevailed in the case, and was got rid of for the future by the Territorial Waters Jurisdiction Act, 1878, which in substance gives to the king's courts jurisdiction over so much of the littoral sea 'as is deemed by international law to be within the territorial sovereignty of the Crown, the same not being less than one marine league from low-water mark. But neither the denial nor the assertion of territorial jurisdiction as resulting from international law, nor again the conferring it by Parliament to the extent of international law, has any direct bearing on the question whether the king's courts, where their jurisdiction is admitted, must or can apply rules of international law to the decision of the matter before them.

The chasm which separates international law from the law of England or of any other country-in other words, rules to be applied between states from rules to be applied between or to private parties, including a foreign state when plaintiff-begins to be bridged when a situation exists between states which is regulated as between them by international law, and thereby state A has against state B a right not practically realizable without the assistance of the courts of the latter, such right belonging to A either for its collective benefit or as trustee for or protector of its subjects who are to enjoy it. The simplest case will be that where the right is such that state A can itself sue for it, and then the courts of B must either give judgment on the question of international law under which the right is claimed, as being at least pro hac vice a question of the law of their land, or declare themselves incompetent to apply the international law, and thereby probably expose their sovereign to much diplomatic inconvenience. But more commonly private persons are so concerned in the situation that the court has to apply its law, whatever that may be, between or to them. Such cases are presented by diplomatic immunities, where the action of a private party may infringe an immunity which the state represented has the right to claim for its servants from the state in which it is represented; by the neutrality of its territory which a neutral state owes to a belligerent one, but which may be infringed by the conduct of a private party within the territory; by rights belonging to a state for the benefit of its subjects, in the enjoyment of which it may protect them when they are infringed by the state against which they exist; and so forth, for the enumeration is not pretended to be exhaustive. In all such cases, if the rights or conduct of a private party were judged by the king's courts without reference to the international rule brought into play between him and a foreign state, the sovereign would be without the means of covering his responsibility to that foreign state.

This principle was recognized in England as early as the reign of Queen Anne, when the persons concerned in the arrest of the Tsar's ambassador, which led to the well-known Act of Parliament, were tried for a misdemeanour, on an information filed by the Attorney-General, 'as infractors of the law of nations': the expression is Lord Mansfield's, in Triquet v. Bath, 3 Burr. 1480. They were found guilty, but never brought up for judgment, because, as Lord Mansfield said, such a sentence as the court could have given he [the Tsar) might have thought a fresh insult. It was recognized again in Barbuit's case (sometimes referred to as Buvot v. Barbut) in Hilary Term, 1737 ; reported in Forrester's Cases temp. Talbot, 281, and a further account of it given by Lord Mansfield, who was counsel in it, in Triquet v, Bath, u. 8. The point was whether a person officially described as 'agent of commerce from the King of Prussia in Great Britain,' an employment which Lord Talbot pronounced to be in the nature of that of a consul, was entitled to diplomatic immunities. 'Lord Talbot,' says Lord Mansfield, declared a clear opinion “that the law of nations, in its full extent, was part of the law of England," and “that the law of nations was to be collected from the practice of different nations and the authority of writers.” Accordingly he argued and determined from such instances and the authority of Grotius, Barbeyrac, Bynkershoek, Wicquefort, &c., there being no English writer of eminence upon the subject 1.' Now what is remarkable in this case is that although Talbot declined to discharge the agent of commerce, who had been attached for nonpayment of what had been found due from him in a chancery suit, the British Government paid the amount and so obtained his discharge. Such a compliance may be attributed in part to

1 See also Heathfield v. Clinton (1767) 4 Burr. 2015, in which Lord Mansfield said : * The privileges of public ministers and their retinue depend upon the law of nations, which is part of the common law of England.' VOL. XXII.

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a desire to maintain good relations with the King of Prussia, but that the case was not then thought to be clear on the law of nations, although now it would be so, results as well from the Prussian demand as at least in some degree also from the British compliance. Therefore it was not possible for Lord Talbot to limit his view of the law of nations to what had been 'really accepted as binding between nations, or even to what had been '80 widely and generally accepted that it could hardly be supposed that any civilized state would repudiate it. As chancellor, he was the principal constitutional adviser of the king in council as to the line which the king could justly maintain in such matters as against a fellow sovereign, and at the same time the head of the law, bound so to interpret the law of the land as to give the king all needful support in maintaining that line. And this he was to do in face of an actual international difference, therefore without ignoring contemporary opinion. That Lord Talbot so understood his duty appears from his quoting Barbeyraç and Bynkershoek, names clothed to us with a venerable antiquity, but of whom Bynkershoek was still living, and Barbeyrac had died in middle age scarcely eight years before. So too, in Viveash v. Becker, 1814, 3 M. & S. 284, 15 R. R. 488—where the point whether a consul is entitled to diplomatic immunities again came up, with the further question whether, in case of the affirmative, such immunities extend to a subject of the state in which he is appointed to act—Lord Ellenborough relied on Vattel, from the publication of whose great work fewer years separated him than separate us from the treatise on the Law of Domicile of Sir Robert Phillimore, whom we have scarcely ceased to regard as a contemporary.

How the principle may be called into play in questions relating to neutrality is illustrated by Gideon Henfield's case; Wharton's State Trials of the United States, p. 49. He was a citizen of the United States who had accepted a French commission in a privateer, herself equipped and commissioned in violation of American neutrality, and had taken part under it in the capture of a British ship. He was indicted in 1793 in the Federal Circuit Court, and acquitted, probably as the result of political feeling ; an occurrence which led to the enactment of the first of the United States neutrality laws. It became a subject of much discussion whether the federal jurisdiction was the right one in which to try him, having regard to the fact that no act of Congress had up to that time declared it to be so, but no doubt has been expressed about the law. Both Chief Justice Jay, who delivered to the grand jury of the district of Virginia a charge carefully prepared as an introduction to the class of cases in question, and Wilson J., who

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